Affirmed and Majority and Dissenting Opinions filed February 7, 2006.
In The
Fourteenth Court of Appeals
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NO. 14-04-00631-CR
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MICHAEL CADETT MAPES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court
Harris County, Texas
Trial Court Cause No. 949,878
M A J O R I T Y O P I N I O N
Appellant Michael Cadett Mapes appeals his conviction for felony driving while intoxicated (DWI). In two points of error, appellant complains that the trial court erred in denying his motion to quash a jurisdictional paragraph and his motion for directed verdict. We affirm.
Background
Appellant was charged with DWI in 2003. The indictment alleged two previous DWI convictions to enhance the 2003 offense to felony DWI under Section 49.09(b)(2) of the Texas Penal Code. Tex. Pen. Code Ann. ' 49.09(b)(2) (Vernon 2003).[1] Claiming that his 2000 conviction is void, appellant timely filed a Motion to Quash a Jurisdictional Paragraph of the Indictment, which the trial court denied. At the close of the State=s evidence, appellant moved for a directed verdict. At the close of all the evidence, the trial court found appellant guilty as charged in the indictment and sentenced appellant to two years= confinement in the Institutional Division of the Texas Department of Criminal Justice.
In his first point of error, appellant contends that the trial court erred in denying his motion to quash a jurisdictional paragraph. Appellant argues that because the punishment assessed in his 2000 DWI conviction fell below the statutorily-authorized range, the 2000 conviction is void and therefore cannot be used to elevate his 2003 offense to a felony.[2] According to appellant, the district court lacked jurisdiction because district courts have jurisdiction only over felony DWI offenses; appellant=s 2003 offense was not a felony because the void 2000 conviction could not be used to enhance.[3] We review a trial court=s ruling on a motion to quash de novo. State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004).
In his second point of error, appellant alleges that the trial court erred when it denied his motion for a directed verdict because the evidence was legally insufficient to support his conviction. We treat a complaint about a trial court=s failure to grant a motion for directed verdict as a challenge to the legal sufficiency of the evidence. Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). In evaluating the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002).
We will consider both of appellant=s points of error together.
Punishment and Void Convictions
In Texas, the punishment assessed must always be within the minimum and maximum fixed by law; if the punishment assessed is less than the minimum provided by law, the judgment of conviction is rendered a nullity. Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003); Wilson v. State, 677 S.W.2d 518, 524 (Tex. Crim. App. 1984). Texas courts consistently have held convictions to be void when prior enhancing convictions were also void. See Wilson, 677 S.W.2d at 524 (finding that a prior conviction was void because it fell below the statutory range of punishment); Ex Parte Burt, 499 S.W.2d 109, 110 (Tex. Crim. App. 1973) (stating that earlier enhancing convictions were void because appellant was indigent, was not represented by counsel, and had not waived his right to counsel); Renshaw v. State, 981 S.W.2d 464, 466 (Tex. App.CTexarkana 1998, pet. ref=d) (finding conviction void because State did not prove prior convictions at trial); State v. Kindred, 773 S.W.2d 766, 768 (Tex. App.CCorpus Christi 1989, no pet.) (finding that earlier convictions were not final and were therefore void).
DWI Offenses: Classification, Punishment, and Jurisdiction
Texas Penal Code Section 49.04(b) classifies the offense of DWI as a Class B misdemeanor and requires a minimum punishment of seventy-two hours= confinement. Tex. Pen. Code Ann. ' 49.04(b). The maximum term of confinement for a Class B misdemeanor is 180 days. Tex. Pen. Code Ann. ' 12.22 (Vernon 2003). The offense of DWI enhanced by one previous DWI conviction becomes a Class A misdemeanor and requires a minimum term of confinement of thirty days. Tex. Pen. Code Ann. ' 49.09(a) (Vernon 2003). The maximum term of confinement for a Class A misdemeanor is one year. Tex. Pen. Code Ann. ' 12.21 (Vernon 2003). The offense of DWI enhanced by two previous DWI convictions becomes a third degree felony. Tex. Pen. Code Ann. ' 49.09(b)(2). The two prior DWI convictions are jurisdictional elements of a felony DWI offense, and they must be proved to obtain a felony DWI conviction. Barfield v. State, 63 S.W.3d 446, 448 (Tex. Crim. App. 2001). Class A and B misdemeanor DWI offenses are tried in the county courts, while felony DWI offenses are tried in either the district courts or the criminal district courts. Tex. Code Crim. Proc. Ann. arts. 4.05, 4.07 (Vernon 2005).
Appellant=s 2000 DWI
Appellant pleaded guilty to DWI in 2000. The information for that conviction described a 1993 conviction for DWI, which elevated the 2000 conviction from a Class B to a Class A misdemeanor. Tex. Pen. Code Ann. ' 49.04(a) (Vernon 2003). Appellant states that in his 2000 guilty plea, the judge admonished that the maximum punishment for his offense was one year, which comports with the maximum Class A misdemeanor punishment. On the 2000 judgment, the judge checked the box denoting Amisdemeanor@ and circled the letter AA@ for class of misdemeanor, as opposed to AB@ or AC.@ However, the judge imposed a punishment of only twenty-four days, which falls below the minimum punishment required by statute, and also circled AN/A@ for the APlea to Enhancement Paragraph(s)@ and the AFindings on Enhancement(s)@ sections.
Clearly, the imposed twenty-four day confinement falls below the minimum thirty-day confinement required by statute for Class A misdemeanor DWIs. The judge=s designation of AMisdemeanor Class A@ combined with the twenty-four day punishment period indicates that appellant was convicted of a Class A misdemeanor DWI but was sentenced outside the statutory range for such an offense. Because the twenty-four day sentence falls below the statutory minimum, appellant=s 2000 DWI conviction is void. Mizell, 119 S.W.3d at 806; Wilson, 677 S.W.2d at 524.
The State argues that appellant was actually convicted of a Class B misdemeanor DWI because the judge circled AN/A@ under both the APlea to Enhancement Paragraph(s)@ and AFindings on Enhancement(s)@ sections on the 2000 judgment. The State contends that these notations indicate that appellant=s 2000 DWI conviction was not enhanced by his 1993 DWI conviction and that the judge must have circled AA@ in the AMisdemeanor Class@ section by mistake. The State alleges that because appellant=s non-enhanced 2000 DWI conviction was a Class B misdemeanor, the twenty-four day sentence fell within the applicable seventy-two hour to 180-day statutory range. However, the State=s analysis is misguided.
The State appears to interpret Penal Code Section 49.09 as a punishment enhancement statute analogous to Penal Code Sections 12.43 and 12.42, which describe the penalties for repeat and habitual felony and misdemeanor offenders. Tex. Pen. Code Ann. '' 12.42, 12.43 (Vernon 2003). However, Texas courts have drawn a clear distinction between enhancement of a punishment and enhancement of a DWI offense. Gibson v. State, 995 S.W.2d 693, 696 (Tex. Crim. App. 1999). As the Court of Criminal Appeals explained in Gibson:
The prior intoxication-related offenses, whether they are felonies or misdemeanors, serve the purpose of establishing whether the instant offense qualifies as felony driving while intoxicated. The prior intoxication-related offenses are elements of the offense of driving while intoxicated.
Id. The court then concluded that Aprior intoxication-related convictions serve the purpose of enhancing the offense in Section 49.09(b) whereas prior convictions used in Section 12.42(d) serve the purpose of enhancing punishment@ and further noted that Section 49.09(b) should not be viewed as a punishment-enhancement statute like Section 12.42(d). Id.; see also Martin v. State, 84 S.W.3d 267, 268B69 (Tex. App.CBeaumont 2002, pet. ref=d). Thus, two prior DWI convictions are required elements of the offense of felony DWI under Section 49.09(b), and the punishment enhancements under Sections 12.42 and 12.43 do not apply in the felony DWI context. Gibson, 995 S.W.2d at 696; see also Weaver v. State, 87 S.W.3d 557, 560 (Tex. Crim. App. 2002); Barfield, 63 S.W.3d at 448. Likewise, one prior DWI is a required element of the offense of Class A misdemeanor DWI under Section 49.09(a), to which the punishment enhancements under Sections 12.42 and 12.43 do not apply. Gibson, 995 S.W.2d at 696. Because the punishment enhancements in Sections 12.42 and 12.43 are inapplicable in the context of enhanced DWI offenses, pleas and findings regarding punishment enhancements are unnecessary. See Barfield, 63 S.W.3d at 448 (stating that separate plea to enhancement paragraphs was unnecessary in felony DWI case because previous DWI convictions are elements of the felony DWI offense).
Consequently, rather than indicating that appellant had been convicted of a Class B misdemeanor, the trial judge=s notation of AN/A@ in the enhancement sections of the 2000 DWI judgment reflects that enhancement pleas and findings were inapplicable and unnecessary in that case. This interpretation of the judgment is also consistent with the trial judge having classified the offense as a Class A misdemeanor. In light of the above precedent and the logical implications of the judge=s markings, we find that the judgment convicted appellant of a Class A misdemeanor DWI but sentenced him below the minimum statutory requirement of thirty days. Consequently, the 2000 conviction is void.
Nevertheless, we find that appellant is estopped from complaining about his void 2000 conviction on appeal because he enjoyed the benefit of the twenty-four day sentence. A defendant has an absolute and nonwaivable right to be sentenced within the proper range of punishment established by the legislature. Speth v. State, 6 S.W.3d 530, 532-33 (Tex. Crim. App. 1999). However, even if a defendant cannot waive such a right, the doctrine of invited error may estop him from asserting it on appeal. Ex Parte Shoe, 137 S.W.3d 100, 102 (Tex. App.CFort Worth 2004, pet. granted). In Shoe, the appellant was convicted of DWI in 1997 pursuant to a plea bargain agreement. Id. at 100. The trial judge sentenced Shoe to forty days in jail but failed to impose a mandatory minimum fine. Id. In 2002, Shoe applied for a writ of habeas corpus, arguing that his 1997 conviction was void because the punishment fell below the minimum statutory requirement. Id. The trial court denied Shoe=s application for habeas corpus. Id. The Court of Appeals held that Shoe was estopped from challenging the void 1997 conviction because he had accepted the benefit of the lesser sentence when he entered into the plea bargain agreement and benefited by not having to pay the fine. Id. at 102. Similarly, appellant entered into a plea bargain agreement in 2000 and benefitted from the short twenty-four day sentence. As the court stated in Shoe: AAppellant should not now be permitted to challenge the lesser sentenceCthe benefit he received and for which he bargainedCbecause events since the sentence was assessed now make that sentence less appealing to him.@ Id. at 102-03.
We find that the evidence is legally sufficient to support appellant=s felony DWI conviction. Because appellant is estopped from challenging his 2000 DWI conviction, viewing the evidence in a light most favorable to the verdict, we find that a reasonable trier of fact could have found that the State proved beyond a reasonable doubt that appellant had at least two prior valid convictions for DWI. Therefore, the trial court=s denial of appellant=s motion for a directed verdict was proper.
Similarly, we find that the trial court did not err by denying appellant=s motion to quash a jurisdictional paragraph because having proved that appellant had two prior DWI convictions, the State established the requisite elements of felony DWI; therefore, the district court had jurisdiction over the case. Accordingly, we overrule both of appellant=s points of error and affirm the judgment of the trial court.
RESPONSE TO DISSENTING OPINION
The dissent disagrees with the majority=s position that appellant is estopped from complaining that his 2001 DWI conviction is void because he enjoyed the benefit of the 24-day illegal sentence. The dissent primarily contends that the majority=s analysis is contrary to several decisions by the Court of Criminal Appeals. We believe that those cases are not controlling.
First, the dissent cites Mizell v. State, in which the Court of Criminal Appeals stated that punishments less than the statutory minimum are illegal, void, and subject to attack on direct appeal, habeas corpus, or in any court with jurisdiction. 119 S.W.3d 804, 806 (Tex. Crim. App. 2003). We do not contest this general principle; however, we do not believe that Mizell sheds any light on the key issue of estoppel. As the Mizell court specifically noted: AWe need not here address the question of whether a defendant might, in some circumstances, be estopped from complaining, after he had enjoyed its benefits, that his sentence was illegal or >void= because it was below the statutory minimum.@ Id. at 807 n.8.
Next, the dissent argues that the majority=s decision conflicts with the Court of Criminal Appeals= holdings in Ex Parte Williams, 65 S.W.3d 656 (Tex. Crim. App. 2001), Fullbright v. State, 818 S.W.2d 808 (Tex. Crim. App. 1991), and Heath v. State. 817 S.W.2d 335 (Tex. Crim. App. 1991). However, we find these cases to be distinguishable from the present case.
For example, the dissent interprets Heath as holding that principles of estoppel do not apply to void sentences, even when the defendant has enjoyed the benefits of his plea bargain for an impermissibly lenient sentence. However, although the Heath court addressed the State=s estoppel argument in its opinion, its fundamental holding does not turn on that issue.
In Heath, a plea bargain case involving an unauthorized grant of probation, a four-judge plurality held that both the order placing the defendant on probation and the order revoking his probation were void because the defendant was ineligible for court-ordered probation. 817 S.W.2d 335, 337 (Tex. Crim. App. 1991). After finding the plea bargain to be unenforceable, the court remanded the cause to the trial court with orders that the trial court withdraw the defendant=s plea and that the defendant replead to the indictment. Id. The court relied on Shannon v. State, which held that Awhen a defendant, who has entered a negotiated plea of guilty, challenges the conviction and is successful, the appropriate remedy is specific performance of the plea, if possible, or, if not, withdrawal of the plea, with both parties, including the State, returned to their original positions.@ Id. at 337 (citing Shannon v. State, 708 S.W.2d 850, 852 (Tex. Crim. App. 1986)) (emphasis in original).
In its opinion on rehearing, the Heath court reiterated its prior holdings: (1) if a punishment is not authorized by law, the sentence is void; (2) appellant did not waive the issue by failing to complain in the trial court because a defect that renders a sentence void may be raised at any time; and (3) when the void sentence is obtained as a result of a plea bargain agreement, where specific performance is not an alternative, the remedy is to order the plea of guilty withdrawn and to return the parties, including the State, to their original positions. Id. Additionally, the court addressed the State=s argument that estoppel principles should prevent the defendant from complaining about the State=s motion to revoke the unauthorized probation because the defendant had enjoyed the benefit of it. Id. at 338-39. At the end of its discussion, the court overruled three cases that seemed to hold that a defendant is estopped from complaining when the State moves to revoke his probation if that probation was not authorized in the first place. Id. at 339.
Despite this discussion, the Heath court=s fundamental holding on rehearing does not involve estoppel principles. Rather, the Heath court=s holding simply reaffirms the Shannon holding that Ain plea bargain situations where the defendant successfully challenges the conviction and specific performance is not an alternative, the only remedy is to order the plea withdrawn and return the parties to their original positions.@ Id. at 340. The court also emphasized that its reliance on Shannon in its original opinion was proper. Id.
Furthermore, in Ex Parte Williams, the Court of Criminal Appeals drew a distinction between unauthorized probation orders and illegal sentences, and held that the Heath court erred in applying a legal doctrine regarding sentences to facts involving a probation order. 65 S.W.3d 656, 658 (Tex. Crim. App. 2001). Although the Williams court mentioned that the State raised an estoppel argument, Williams does not control the present estoppel issue because the court=s analysis and holding address only the distinction between sentences and probation and whether the defendant was entitled to habeas relief. Id. at 658. Because Heath and Williams involved probation orders rather than sentences and because their holdings ultimately do not address estoppel, we disagree with the dissent=s conclusion that Williams extends Heath=s estoppel analysis to situations involving void sentences.
The dissent also believes that the majority=s position conflicts with the Court of Criminal Appeals= decision in Fullbright v. State. 818 S.W.2d at 810 . However, like Heath, Fullbright involved the unauthorized grant of probation rather than a void sentence. Id. at 809-10. In Fullbright, the defendant, who was indicted for aggravated robbery, filed a motion to quash an enhancement allegation, arguing that his prior conviction was void because the court had ordered unauthorized probation. Id. at 809. Citing Heath, the court reiterated the general principles that a sentence unauthorized by law is void and that a defect that renders a sentence void can be raised at any time. Id. at 810. Without discussing estoppel, the Court of Criminal Appeals held that the court of appeals erred by holding that the defendant could not raise the issue on appeal, and it remanded the cause to the trial court for a new punishment hearing. Id. at 809, 811.
In addition to the fact that Fullbright addressed an unauthorized grant of probation rather than a void sentence, we do not consider it controlling in the instant case because Fullbright focuses on the concept of waiver rather than estoppel. As Justice Keller remarked in her concurring opinion in Williams: Aestoppel [is] distinct from waiver and >is part of the definition of what can constitute error, and quite reasonably defines error of which a party may complain as excluding those actions of the trial court actually sought by the party to the tribunal.=@ 65 S.W.3d at 658 (Keller, J., concurring); see also Prystash v. State, 3 S.W.3d 522, 531 (Tex. Crim. App. 1999) (explaining in an erroneous jury charge case that there is Aa crucial distinction between the rules of waiver and the law of invited error,@ and that the doctrine of invited error is properly thought of as estoppel, not as a form of waiver). In answering the question of whether Aany error capable of rendering a judgment or sentence void can be subject to estoppel,@ Justice Keller asserted that all errors except for subject matter jurisdiction are subject to estoppel and concluded that Aby accepting the plea agreement, appellant gained a bargained-for benefit that should now estop him from challenging the trial court=s authority.@ Williams, 65 S.W.3d at 659-60 (Keller, J., concurring). Although Williams also involved an unauthorized grant of probation, because the issue in the present case is whether appellant is estopped from complaining about the void 2001 conviction because he enjoyed the benefit of that sentence pursuant to a plea bargain, we find Justice Keller=s analysis to be more instructive than the court=s decision in Fullbright.
The dissent cites several cases in support of its assertion that Acourts of appeals have recognized the continued validity of the legal doctrines stated in Fullbright and Heath as applied to illegal sentences rather than probation orders.@ We disagree.
In the first case cited by the dissent, Rhodes v. State, the court referred in a footnote to Fullbright=s holding that Athe State may not rely upon a punishment that is >not authorized by law= for enhancement purposes.@ 175 S.W.3d 348, 352 n.1 (Tex. App.CHouston [1st Dist.] 2004, pet. filed). The court also reiterates the principle that punishments unauthorized by law are void and states that issues regarding void sentences cannot be waived. Id. However, the issue in the instant case involves enhancement of an offense, not a punishment, and the Rhodes court, like the Fullbright court, makes no mention of the effect of estoppel on a void conviction.
Secondly, the dissent notes that in Scott v. State, a case in which the defendant was not assessed a mandatory fine, the court of appeals cited Heath and ordered a new punishment hearing even though the defendant benefitted from an improperly lenient sentence. 988 S.W.2d 947, 948 (Tex. App.CHouston [1st Dist.] 1999, no pet.). The court reasoned that a sentence outside the statutory limits is absolutely void and cannot be waived. Id. Importantly, however, this case was decided before Williams. Furthermore, like Fullbright, Scott does not address the difference between estoppel and waiver and it focuses on punishment rather than enhancement of an offense.
Finally, the dissent correctly states that in Ortiz v. State, this court cited Heath in discussing the law regarding illegal sentences. Nos. 14-00-00646-CR, 14-00-00647-CR, 14-00-00648-CR, 2001 WL 1249257, at *1 (Tex. App.CHouston [14th Dist.] October 18, 2001, no pet.) (not designated for publication). However, Ortiz merely reiterates the established principle that illegal sentences are void; it does not address estoppel. Id.
For these reasons, we believe that reliance on Ex Parte Shoe is proper in this case and that appellant is estopped from complaining about his void prior conviction because he enjoyed the benefit of the lesser sentence. 137 S.W.3d 100, 102 (Tex. App.CFort Worth 2004, pet. granted).
/s/ Adele Hedges
Chief Justice
Judgment rendered and Majority and Dissenting Opinions filed February 7, 2006.
Panel consists of Chief Justice Hedges and Justices Fowler and Frost. (Frost, J. dissenting)
Publish C Tex. R. App. P. 47.2(b).
[1] Documents admitted at trial show that appellant had been convicted of DWI in 1993 and in 2000.
[2] A conviction for felony DWI requires proof of two prior DWI convictions. Tex. Pen. Code Ann. ' 49.09(b)(2). See also Barfield v. State, 63 S.W.3d 446, 448 (Tex. Crim. App. 2001).
[3] Tex. Pen. Code Ann. ' 4.05 (Vernon 2005) (stating that felony DWI offenses are tried in either the district courts or the criminal district courts).